Posted
by
Soulskillon Monday April 18, 2011 @05:19PM
from the pursuing-patents-on-geometric-shapes dept.

mystikkman writes "In the latest patent suit to hit the smartphone industry, Apple is suing Samsung, alleging the Galaxy line of phones and tablets infringe on a number of Apple's patents. 'Samsung's Galaxy Tab computer tablet also slavishly copies a combination of several elements of the Apple Product Configuration Trade Dress,' Apple says in its suit, noting that Samsung's tablet, like Apple's, uses a similar rectangular design with rounded corners, similar black border and array of icons. Apple previously sued HTC over Android. If Samsung is found to be infringing on the software, all the Android OEMs could be vulnerable."

"“Samsung’s Galaxy Tab computer tablet also slavishly copies a combination of several elements of the Apple Product Configuration Trade Dress,” Apple says in its suit, noting that Samsung’s tablet, like Apple’s, uses a similar rectangular design with rounded corners, similar black border and array of icons."

I'll bite. This is a trademark infringemnet case that leverages a "famous" mark that has been attained by teaching the consumer about Apple phone and tablet products look and feel against a junior mark that may not be famous. Even though the trademark isn't registered, that doesn't make it invalid (although it should technically limit it to the state in which Apple primarily engages in commerce, but there are ways of getting around that, legally) and may be enough to take a trademark dilution by blurring claim (where two different marks are so similar as to likely cause customer confusion but not similar enough to be infringement or a counterfeit).

The questions a jury will have to answer are:

1.) What is the degree of similarity between the mark or trade name and the famous mark?2.) What is the degree of inherent or acquired distinctiveness of the famous mark?3.) To what extent is the owner of the famous mark engaging in substantially exclusive use of the mark?4.) What is the degree of recognition of the famous mark?5.) Is the user of the mark or trade name intended to create an association with the famous mark?6.) Is there any actual association between the mark or trade name and the famous mark?

The first question is a given. The Galaxy lines of phones were targeted directly at iPhone users. Samsung went as far as to give the phone to frustrated iPhone users [talkandroid.com]. I own the Vibrant version, which looks identical to the UK version, and the OS was designed to be like a mixture of iOS and Android. You can even uninstall apps using a "minus" button very similarly to iOS's "X" to delete apps.

Number two is harder to prove since the design Apple is employing has been around for a while. Not that's it's not impossible to prove, just harder. This has already been mentioned by other/. post above and below this reply.

Number three is easy as Apple has been consistent with this design since its inception.

Number four is a tough one too. I'll give an example. Today, while registering my child for kindergarten school for the fall, I took my iPad to let the child play with to keep quite while filling out paperwork. About half of the 4th grade school population went passed us on their way to lunch, almost all talking about this device. Some children knew what the device was, some thought they knew what the device was, and some had no idea what it was (a few said it was a TV). While not directly calling 4th graders the equivalent of the adult American public that will sit in a jurors seat, their will likely be similarities in terms of identifying Apple's products. We tech enthusiast know the difference, but does your grandmother? What about your automobile mechanic? This is where jury selection becomes important. Samsung would want tech enthusiast who can clearly see the difference between the products, while Apple is going to want everyday people who will simply call the mark that came to market first as the "famous" mark and anything else is a knockoff.

Number five is a tough call too. At one angle, Samsung is engaging iOS users that their Android smartphone has a similar experience to iOS to warrant a switch, while the other end you could just as easily argue that Blackberry and Android users are Samsung's ultimate target, especially since Android options are so vast. Samsung could easily argue that in order to differentiate themselves from other Android devices, they used a design unique to the Android smartphone market.

Number six is where we will see Apple claim that Samsung used the association of being the manufacture of the iPhone 4's chips to their Galaxy lines having equivalent chips. This claim is a long shot, but still possible if Apple can get a layman's head around what the hell a chip is in the first place.

Since Apple is the one bringing suit, Samsung could easily attack the rounded corn